Pennsylvania: Same-sex marriage ban struck down (UPDATED)

Posted Tue, May 20th, 2014 2:58 pm by Lyle Denniston

UPDATED Wednesday 3:21 p.m. Pennsylvania Governor Tom Corbett announced on Wednesday afternoon that the state would not appeal Judge Jones’ ruling. That would make Pennsylvania the nineteenth state in which same-sex marriage is legal — assuming that the attempt to appeal in the Oregon case by a non-government entity fails. Thus, Oregon appears to be the eighteenth state. Washington, D.C., also allows such marriages.

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Ruling that “all couples deserve equal dignity in the realm of civil marriage,” a federal judge in Harrisburg ruled on Tuesday that Pennsylvania laws banning same-sex couples from marrying violate the federal Constitution.

U.S. District Judge John E. Jones III, in a thirty-nine-page opinion, commented: “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.” This was the twelfth federal trial court ruling in a row — decisions spread across the country — to nullify a state ban on same-sex marriages. The judge also ruled that the state must recognize same-sex couples who live in the state but who were legally married elsewhere.

Judge Jones examined all of the legal issues on whether to provide greater constitutional protection for gays and lesbians against official discrimination, and found that they were entitled to it. So he applied the middle-level constitutional test — “heightened scrutiny” — and found that the Pennsylvania laws do not meet that test.

In a separate order implementing his decision, he told state officials that they were permanently barred from enforcing the state laws. His order did not mention any delay or postponement of that command. State officials have the option of asking Judge Jones or the U.S. Court of Appeals for the Third Circuit to issue a stay of the ruling if they were to decide to appeal.

The ruling came in the case of Whitewood v. Wolf (District Court docket 13-1861). It was filed by eleven couples — six seeking to marry, five seeking to have their out-of-state marriages officially recognized, a widow of a same-sex marriage seeking widows’ benefits, and two children of one of the suing couples, claiming that the state laws deny them social recognition and respect for their family.

The Pennsylvania legislature in 1996 changed the state’s existing marriage laws expressly to forbid same-sex marriage. One section declared that marriage could only be one “by which one man and one woman take each other for husband and wife.” The second specified that any existing (or future) marriage between persons of the same sex, entered into outside of the state, is void. Judge Jones struck down both.

While the state’s attorney general, Kathleen Kane, refused to defend the state laws, other state officials did so. The case was scheduled to go to trial in June, but both sides then agreed that it could be decided without a trial.

This case was one of several in state and federal courts challenging the Pennsylvania marriage laws. This was the first to produce a decision.

With similar rulings coming in state after state, all against same-sex marriage bans, the focus will soon turn to decisions expected in coming days from federal appeals courts. So far, hearings have been completed in appeals courts on the bans in Oklahoma, Virginia, and Utah.

At the rapid pace of this string of rulings, it appears that one or more of them will reach the Supreme Court for consideration at the Justices’ next Term, starting in October. They will have complete discretion whether to take on any of them.

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